The Real Impact of George H. W. Bush’s Presidency

The consequences of his Supreme Court picks are still felt today—as Trump's will be for decades to come.

December 5, 2018

George H. W. Bush, who died on December 1, is remembered more for his influence on world events than for his domestic policies. That may be an inevitable byproduct of serving as president during the end of the Cold War and organizing the international coalition in the Gulf War. But Bush had a profound impact on American life that endures to this day—indeed, that affects citizens every day—through just two consequential decisions.

Bush filled a pair of vacancies on the Supreme Court during his single term in office: first by nominating David Souter to replace William Brennan in 1990, then picking Clarence Thomas to replace Thurgood Marshall in 1991. Brennan’s and Marshall’s retirements marked a turning point in the court’s history. They were the last liberal justices of the Warren Court, which bent American history in a more progressive direction during the 1950s and 1960s. With their departures, Bush had a chance to cap the conservative legal movement’s reconquest of the Supreme Court.

But Bush inadvertently placed that goal out of reach for a generation by choosing Souter, who turned out to be a liberal justice. Souter’s presence ensured that Roe v. Wade would remain the law of the land for at least a quarter-century and helped guarantee that a reliable conservative majority would not emerge until this year. Thomas’s nomination thrilled conservatives, but the battle to place him on the court amid sexual-harassment allegations set the stage for more partisan judicial confirmation battles in the years to come. Bush’s nominations changed not only the court itself, but also its place in American politics and civic life.

Supreme Court justices can be a major feather in any president’s cap. For one-term presidents, the significance can be even greater. Gerald Ford filled a single vacancy on the court during his three-year presidency, nominating John Paul Stevens, a Midwesterner judge on the Seventh Circuit Court of Appeals, to replace William O. Douglas in 1975. Stevens began his tenure on the court—the third-longest in its history—as a centrist, amenable at first to the Burger Court’s rightward drift after the Warren years. He retired in 2010 as the dean of the liberal justices.

Ford, a Republican, nonetheless did not regret his decision. In a letter to USA Today written a few months before his death in 2005, he noted that great justices were not typically counted among a president’s achievements. “Eisenhower’s Earl Warren, John Adams’ John Marshall and Wilson’s Louis Brandeis immediately come to mind; although references to these great jurists are usually absent in presidential biographies,” he wrote. “Let that not be the case with my presidency. For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court.”

Other presidents weren’t as fortunate. Jimmy Carter served a full four-year term after defeating Ford in 1976, but no vacancies emerged, making Carter the only president in the twentieth century to name no justices to the high court. This is not to Carter’s discredit; it wasn’t up to him. But the circumstances still produced a remarkable quarter-century of conservative influence over the court’s trajectory. After Lyndon B. Johnson’s appointment of Thurgood Marshall in 1968 and until Bill Clinton’s appointment of Ruth Bader Ginsburg in 1993, Republican presidents placed eleven justices on the high court.

Some of those justices, such as William Rehnquist and Antonin Scalia, were reliable conservative votes on the court. Others, like Sandra Day O’Connor and Anthony Kennedy, were generally conservative but not doctrinaire about it. Bush’s selection of Souter was meant to fall in the reliable column. Souter, a patrician New Englander like Bush, was not a member of the conservative legal movement. He did not travel in Federalist Society circles, nor did he identify as a particularly conservative jurist, though the Bush White House vouched for him to conservative activists.

Bush and his aides were ultimately wrong. Within a few years, Souter had become a reliable vote for the court’s liberal wing. A key turning point came in 1993, when the court heard Planned Parenthood v. Casey. Four of the court’s members, including Thomas, had signaled in previous cases that they would overturn Roe v. Wade if given the opportunity. The nation expected in Casey that they, plus a fifth vote, would swing the axe. Instead, justices Kennedy, O’Connor, and Souter forged a compromise that upheld Roe’s core ruling—that the Constitution protects a woman’s right to obtain an abortion—while imposing a new test to determine whether abortion restrictions posed an “undue burden” to that right.

Roe’s survival in Casey was a jarring defeat for the conservative legal movement, one that led them to rethink their approach to judicial nominations. No longer would right-wing activists take the White House’s word on a nominee’s ideological fitness. Supreme Court justices selected by Republican presidents now have to meet the advice-and-consent requirement twice: first from the conservative intelligentsia, and then from the Senate. Harriet Miers, a George W. Bush loyalist without ties to the movement, failed the test and withdrew from consideration in 2005. John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh passed it with flying colors.

Bush’s selection of Thomas proved to be just as influential. Thomas was no Souter; by any measurement, he ranks among the most conservative jurists to serve on the Supreme Court in a quarter-century. His replacement of Marshall also produced one of the largest ideological swings for a single seat in the court’s modern history. The story of Supreme Court nominations is a story of what-ifs, and Marshall’s retirement is perhaps the most poignant of all for liberals: The civil-rights icon died two years after he retired on January 23, 1999—three days after Bill Clinton’s inauguration. Had Clinton chosen his successor, Bush v. Gore may have been decided differently, and the last two decades of American history would be unrecognizable.

Just as significant as Thomas’s elevation to the court was the fight to place him there. Contentious Supreme Court confirmation battles weren’t novel in 1991, of course. Thomas’s nomination came only four years after the Senate rejected Ronald Reagan’s selection of Robert Bork, a prominent conservative scholar whose views gave Democrats plenty of ammunition to sink his nomination. Thomas made it through his initial confirmation hearings without major problems. Then came the reports that he had sexually harassed Anita Hill when working as her supervisor at the Equal Employment Opportunity Commission in the early 1980s.

Bush stood by his nominee when the allegations became public. “I’ve got strong feelings, but they all end up in support for Clarence Thomas,” he told reporters when the Senate Judiciary Committee announced it would call Thomas and Hill to testify on the matter. Those hearings transformed sexual harassment in the workplace into a national topic of discussion after years in the shadows. The hostile and dismissive treatment of Hill by an all-male panel of senators led to a record number of women candidates elected to Congress in the 1992 elections. Its impact still reverberates: Any history of the #MeToo movement begins with Anita Hill.

These days, presidents are more aware that the Supreme Court nominees they choose will be major parts of their legacy. Perhaps no president is more keenly aware of this than the current one. Donald Trump often bragged about his selections of Neil Gorsuch and Brett Kavanaugh to crowds of supporters during the 2018 campaigns. His future in the Oval Office is far from certain: Assuming he isn’t impeached in the next two years, his dismal poll numbers don’t bode well for a re-election bid in 2020. (Then again, they didn’t bode well for his election bid in 2016, either.) No matter his ultimate fate, however, Gorsuch and Kavanaugh will remain on the court for at least a generation, ensuring that Trump’s impact on American life will long outlive him.